Although the First Amendment makes no distinction between types of speech, courts have consistently offered so-called “commercial speech” less protection than non-commercial speech. Under the Central Hudson test, courts balance the interests of regulators against the interests of those engaged in commercial speech. These interests can lead to limitations on how pharmaceutical companies communicate information about lawful treatments with patients, doctors, and insurance companies; how lawful products like tobacco or liquor are advertised; and how businesses express themselves. What limitations should courts permit government to impose on commercial speech, if any? Should Central Hudson be reconsidered? And what about occupational speech? Should “commercial speech-level restrictions” be imposed on individuals who offer advice in the fields of interior design, investing, or parenting, for example? How or should concerns about economic liberty be factored in? And do state constitutions provide broader protections for commercial speech than the federal Constitution? If so, should cases like Nike vs. Kasky be overturned?

Erik Jaffe, Law Office of Erik Jaffe

Christina Sandefur, Goldwater Institute

Amanda Shanor, Yale Law PhD Candidate

Hon. Alex Kozinski, U.S. Court of Appeals, 9th Circuit (Moderator)

The First Amendment and Campus Speech 10:30 a.m. – 12:00 Noon

Free speech on college campuses has been under attack in recent years, increasingly from students who have protested speakers whom they disagree with politically. These protests have succeeded in both cancelling events and creating disturbances through blockades, shouts, and even violence as was the case at Middlebury College. What responsibilities do universities hold to protect a climate that encourages the open and respectful exchange of ideas? Should “hate speech” be protected or are special protections needed to protect students from “offensive” discourse? What do universities owe students and speakers to protect their personal safety if protests break out?

Marieke Tuthil Beck-Coon, Director of Litigation, The Foundation for Individual Rights in Education,

With federal proposals like the DISCLOSE Act sidelined by Republicans in Congress, some state governments officials, including state secretaries of state, have sought to place limitations on campaign speech through other methods. State legislators have proposed new state laws against “dark money” and advocated new disclosure regimes as well as increased restrictions on speech and political engagement by key public officials who coordinate on a national level. City lawmakers have proposed public financing regimes as well as matching funds, which are often far more restrictive than with state law. State Secretaries of State have proposed rules to implement failed campaign finance reform proposals and impose heightened donor disclosure regulations as well as requiring more detailed financial disclosures from non-profit organizations. Do these campaign speech proposals and increased pushes toward greater disclosure lead to more transparency and freer and fairer elections, or do these efforts infringe upon First Amendment rights?

Professor Richard L. Hasen, Chancellor's Professor of Law and Political Science, University of California, Irvine

Hon. Carlos T. Bea, United States Court of Appeals for the Ninth Circuit

Free Speech Absolutism: Have We Gone Too Far? 2:00 p.m. - 3:30 p.m.

No clause in the Constitution draws more judicial encomia to liberty than the Free Speech Clause. But as Justice Robert Jackson warned, extending freedom of speech to unworthy expression can actually “belittle great principles of liberty.” Courts today regularly confront opportunities to expand free speech protection--for example, whether there is a speech right to flash one’s headlights to warn oncoming drivers of police speed traps or whether law enforcers can restrict the social-media posts of their own officers. The Ninth Circuit has already confirmed the right to view executions, but current litigation seeks to expand the scope of that right.

On the other hand, our law also recognizes many categories of unprotected expression--libel, fraud, perjury, intimidation, mislabeled drugs, and exposure of military secrets, to name a few. What these categories have in common is a conclusion that speech’s harm can--and often does--outweigh its supposed entitlement to protection. The panel will explore the intersection of criminal law and procedure with First Amendment jurisprudence with a particular focus on evaluating the advantages and disadvantages of further expanding free speech protections.

Dominic Draye, Solicitor General, Arizona

Professor Thane Rosenbaum, NYU Law School

Steve Simpson, Ayn Rand Institute

Joseph Tartakovsky, Deputy Solicitor General, Nevada

Hon. Tim Tymkovich, U.S. Court of Appeals, 10th Circuit (Moderator)

Library Tours3:30 p.m. - 4:30 p.m.

Closing Reception4:30 p.m. - 5:30 p.m.

Views and opinions expressed by The Federalist Society are not necessarily shared by the Ronald Reagan Presidential Library and Foundation.